On June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled, Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018). In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the rule (“2017 Standard”), which revised the previously existing workplace examination standard at 30 C.F.R. § 56/57.18002.
Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways. In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the issue through litigation with appeals still currently pending as explained more fully below.